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The Minister of Justice appears proud to say that he
refuses to read Lynley Hood’s book A City Possessed. This is
unfortunate as there are numerous lessons to be learned from the saga that
are of value today, regardless of the issue of Ellis’s guilt. On that issue
alone, we are witnessing the kind of establishment obstinacy and public
dissatisfaction that led in The Minister shelters behind the Court of Appeal and the
report by Sir Thomas Eichelbaum, but this is not good enough. One of Lynley
Hood’s achievements, as a non-lawyer, is an astute criticism of the
shortcomings of the various methods available to review criminal convictions.
Each of the reviews and appeals suffered from some limitation, self-imposed
or otherwise. A City Possessed is the first attempt at a review of the
whole case from the investigation onwards. The first issue obviously is whether Ellis should have
been convicted. No one who has read the confusion and contradiction displayed
by the witness statements that Hood recites can be happy that the convictions
are safe. The Court of Appeal confessed to having read only extracts of the
statements, but this is not enough to make one content with them, whereas
relevant extracts are sufficient to show that witnesses were confused,
self-contradictory and unreliable. Either Sir Thomas did not read those
statements because, like everyone else he restricted himself to the filleted
evidence that the Judge allowed in, or, with respect, his judgment is at
fault. Regardless of that issue, however, there are several
systemic matters which clearly require attention and which, it seems, require
attention today just as much as a decade ago. Police investigation: the investigation in the Ellis saga
suffered from a clear fault which was that it was driven by a junior officer
with a bee in his bonnet. Senior officers seem almost never to have exercised
independent judgment: they evidently regarded themselves as the heavy guns to
be wheeled out whenever the OiC needed. It is clearly inappropriate that a
multiple victim case involving serious criminal allegations, important legal
and policy questions relating to evidence and major budgetary issues should
have been conducted by an officer of the rank of Detective. Exactly the same
thing seems to have happened again in the Sotheran Dash-8 crash case
where either the Detective concerned was being used as a front to shelter the
real decision makers, or another hugely expensive and complex investigation
was conducted without any leadership from supervising officers. Section 23G of the Evidence Act: this section is
meaningless nonsense. This is not hindsight, it was said at the time it was
passed. The section authorises the giving of evidence about whether behaviour
is consistent or inconsistent with sexual abuse. “Inconsistent” means
“logically impossible in combination with” and “consistent” simply means “not
inconsistent”. There is no behaviour that is inconsistent with sexual abuse
and so the DSAC manual instructed doctors to report all behaviour as “consistent
with sexual abuse”. This is clearly not understood by most lawyers and
police, who, surveys show, think that “consistent” means “provides supporting
evidence for”. Sadly, the Law Commission draft Evidence Code just reiterates
this nonsense verbatim. It should be repealed. The kindest thing that can be
said for those responsible for it is that they cannot have known what they
were doing. Psychological evidence: little psychological evidence stands up to
serious scrutiny. Psychologists have managed to con the system for years with
nonsense such as “offender profiling” which has no scientific basis whatever.
The fact is that psychology completely lacks a general theory of human
behaviour and the divisions between schools of psychology are as deep as
argument about whether the earth goes round the sun or vice versa. Few
psychologists understand the logical structure of evidence they are giving,
as surveys of numerous cases, listening to them speak on this and other
issues at seminars, and personal experience of trying to train them in
evidence-giving demonstrates. Almost no statements made by psychologists are
backed up by the population data necessary to give the evidence probative
value. The so-called “prosecutor’s fallacy” is endemic. Recently a psychologist
on television suggested that many premature births are due to stress events
in pregnancy. To prove this she interviewed mothers who had given birth
prematurely and discovered that some high proportion of them had suffered
stress events in pregnancy. This, she said, proved her theory. Much
psychological evidence in real Court cases in The appeal structure: The position in a criminal appeal appears
to be this. If you are an undoubted criminal caught red-handed but you can
point to some defect in police procedure, the Court of Appeal will exercise a
power it has arrogated to itself and which Parliament never intended it to
have, to rule the evidence inadmissible and set you free. If on the other
hand, you argue that you are innocent and have only been convicted because of
misjudgments by the trial Judge and by the jury, the Court of Appeal will
refuse to exercise the power Parliament intended it to have to revisit the
conduct of the trial and the evidence available. This is not how to create
confidence in the criminal justice system. |
